South Africa: Eastern Cape High Court, Grahamstown

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[2017] ZAECGHC 17
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Jim v S (CA&R189/16) [2017] ZAECGHC 17 (28 February 2017)
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IN THE HIGH COURT OF SOUTH AFRICA
(EASTERN CAPE DIVISION, GRAHAMSTOWN)
Case No: CA&R 189/16
In the matter between:
GEORGE JIM Appellant
and
THE STATE Respondent
JUDGMENT
MBENENGE J:
[1] The appellant, together with erstwhile accused 1 (accused 1) and erstwhile accused 3 (accused 3), stood charged before the Regional Court, Port Elizabeth with two counts of robbery with aggravating circumstances.
[2] It was alleged, on count 1, that, upon or about 10 February 2015 and at or near Amalinda N2 in the Regional Division of the Eastern Cape, the appellant and accused 1 and 3 unlawfully and intentionally assaulted Mike Mashiyane and with force removed from him a grass cutting machine which was his property or in his lawful possession, aggravating circumstances having been that the said Mike Mashiyane was threatened with a fire arm. The complainant in count 2, and from whom a cutting machine was allegedly removed at gun point, was a certain Tsepo Lesoro.
[3] The appellant and accused 1 and 3 all pleaded not guilty on both counts. Accused 3 was acquitted on both counts, whilst the appellant and accused 1 were found guilty of theft on count 1 and guilty of robbery on count 2. They were thereupon each sentenced to undergo 10 years imprisonment.
[4] The appeal (by the appellant) is against conviction only, and is with the leave of this court.
[5] The complainant on count 2, Tsepo Lesoro (the complainant) and two policemen that were involved in effecting the arrest on the appellant, Vuyolwethu Mbekeni (Mbekeni) and Thembani Langeni, (Langeni) were called to testify on behalf of the State.
[6] The facts are briefly that the complainant (and his co-workers) had been cutting grass alongside the N2 national road in the vicinity of Amalinda, East London, when three males approached them enquiring about the “noise” they were making with the grass cutting machines. The three men went to a nearby shack, but returned a few minutes later, having been joined by three other men. One of these men (who was not an accused before the court a quo) pointed a fire arm at the complainant, whilst accused 1 demanded the grass cutting machine of which the complainant was in possession. A man said to be accused 1 took the machine from the complainant, whilst another (the appellant) took another grass cutting machine that had been on the ground. One of the machines was handed over to accused 3 who had appeared some distance away. Together, the culprits fled the scene. The workmen’s’ supervisor was alerted of the robbery. Thereafter, the complainant and other men pursued the culprits, but lost sight of them. Eventually, the complainant came upon the appellant and accused 3 at a time when they had already been apprehended by the police. When asked by the police whether the arrestees were the ones who had been involved in the robbery, the complainant responded in the affirmative.
[7] The testimony of Mbekeni related primarily to accused 1, who pointed out the property subject to the robbery to the police after he had been arrested.
[8] The upshot of Langeni’s testimony was that after being informed of the robbery, he ultimately also gave chase and saw a group of men running, but at some point lost sight of them. A few minutes later he saw two men standing next to the shop. He approached them as the appellant’s height matched that of one of the men he had seen running.
[9] The appellant denied having been involved in the robbery. He and accused 3 had come from a bus stop and had gone into the shop to buy chips and cigarettes. When emerging from the shop they got arrested by the police. That version found corroboration from accused 3.
[10] The court a quo became satisfied with the evidence of the identification of the appellant. This conclusion was based on the fact that “[the complainant] had [seen] him twice at the scene where the machines were robbed, taken and shortly afterwards by mere coincidence he and accused 3 were in close proximity of [the appellant] when all three of them were arrested.”
[11] The finding of the court a quo in relation to accused 3’s involvement is of significance. It reasoned:
“As far as accused no 3 is concerned the court is in doubts as to whether his [guilt] has been proved beyond reasonable doubt. [The] complainant conceded that he saw him for a very brief period of time at a distance across the road, about 30 odd metres. As far as he is concerned there must be a doubt as to whether he is guilty.”
[12] This conclusion is, with respect, not borne out by the evidence. To begin with, no evidence was tendered, apart from that of the complainant, implicating the appellant. The evidence shows that accused 1 against whom the court found there was overwhelming evidence of involvement in the commission of the offence had not been in the company of the appellant when being arrested; there was a considerable distance between the spot where the stolen goods were hidden and the spot where the appellant was arrested. After the complainant had given chase, the perpetrators disappeared and were seen by the complainant some time thereafter.
[13] What of Langeni’s testimony? His evidence invited the drawing of an inference from the fact that a person with the appellant’s height had been one of the culprits who fled the scene. I agree with Mr Geldenhuys, counsel for the appellant, that it cannot be inferred from the appellant’s height alone that he was one of the persons seen running in the group that was being chased. No other characteristics of the appellant were observed by Langeni.
[14] We should, at this juncture, remind ourselves of the factors that need to be considered in order to determine the reliability of evidence pertaining to identification, articulated in S v Mthethwa[1] as follows:
“Because of the fallibility of human observation, evidence of identification is approached by the Courts with some caution. It is not enough for the identifying witness to be honest: the reliability of his observation must also be tested. This depends on various factors, such as lighting, visibility, and eyesight; the proximity of the witness; his opportunity for observation, both as to time and situation; the extent of his prior knowledge of the accused; the mobility of the scene; corroboration; suggestibility; the accused’s face, voice, build, gait, and dress; the result of identification parades, if any; and of course, the evidence by or on behalf of the accused. The list is not exhaustive. These factors, or such of them as are applicable in a particular case, are not individually decisive, but must be weighed one against the other, in the light of the totality of the evidence, and the probabilities; see case such as R v Masemang, 1950 (2) S.A 488 (AD); R v Dlala and others, 1962 (1) S.A 307 (AD) at p. 310; S vMahlepe, 1963 (2) S.A 29 (A.D). [2
[15] Against the trite legal position alluded to above it should be highlighted that the complainant had never seen the appellant before the day of the robbery. On the complainant’s own showing, he did not, on the first occasion, pay any special attention to the appellant, having focused on the culprits who were enquiring about the noise. On the other occasion, the complainant was not focusing on the appellant, but on the culprit with the firearm and erstwhile accused 1, the incident having taken place within a very short space of time. The complainant conceded that he was frightened by the experience of having been pointed at with a firearm and falling victim of a robbery; he was in a state of shock. He claimed to have seen the face of the appellant even though “he was at a distance”, hence he could not state what special or outstanding features the appellant’s face bore.
[16] The complainant claims to have also identified the appellant after the police had arrested him and the erstwhile accused. That brings to the fore the real danger of suggestibility alluded to in the Mthethwa case.[3] At that point the complainant was specifically asked whether the three accused (including the appellant) had been involved in the robbery. The danger of suggestibility comes out clearer if one has recourse to the fact that accused 1 who was involved in the robbery had been arrested together with the appellant.
[17] I am also of the view that the version of the appellant was reasonably and possibly true. That version found support from erstwhile accused 3. The corollary of the court a quo’s finding that accused 3’s guilt had not been proven beyond a reasonable doubt must needs have been that accused 3’s version was reasonably and possibly true. The appellant was not given the same protection and benefit accorded accused 3. It was only fair and just for the appellant as well to be acquitted on the same basis.[4]
[18] I therefore order that the appellant’s appeal is upheld and that his conviction and sentence are set aside.
___________________________
S M MBENENGE
JUDGE OF THE HIGH COURT
____________________________
P T MAGEZA AJ
ACTING JUDGE OF THE HIGH COURT
Counsel for the Appellant : D P Geldenhuys
Instructed by : The Grahamstown Justice Centre
Counsel for the First Respondent : S S Mtsila
Instructed by : The Office of the DPP
Grahamstown
Date heard : 15 February 2017
Judgment delivered : 28 February 217
[1] 1972 (3) S A 766 (A)
[2] Also see Vukile Johnson Janata v The State (unreported judgement of the ECD by Plasket J (concurred in by Mhlantla J (as she then was) delivered on 15 December 2004 under Case No CA&R163/04),and the authorities cited therein with approval.
[3] Supra
[4] Cf Mlumkelo Ngaye v The State (unreported judgment of the Western Cape High Court by Blignaut J (concurred in by Weyer J), delivered on 3 December 2010 under Case No A567/10).